Holder Memorandum: Criminal Defense Attorneys Have a New Tool

By far, the most concrete and useful of the three pronouncements for criminal defense attorneys made last week was United States Attorney General Eric Holder's Memorandum to all Assistant United States Attorneys regarding the "Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases." That Memorandum calls for a "fundamental rethinking of the notion of mandatory minimum sentences for drug-related crimes"; and it contains some very specific directions regarding the DOJ's charging policies regarding mandatory minimum sentences for certain nonviolent, low-level drug offenders. Specifically, the Holder Memorandum states: "In cases involving the applicability of Title 21 mandatory minimum sentences based on drug type and quantity, prosecutors should decline to charge the quantity necessary to trigger a mandatory minimum sentence if the defendant meets each of the following criteria: The defendant's relevant conduct does not involve the use of violence, the credible threat of violence, the possession of a weapon, the trafficking of drugs to or with minors, or the death or serious bodily injury of any person. The defendant is not an organizer, leader, manager or supervisor of others within a criminal organization; The defendant does not have significant ties to large-scale drug trafficking organizations, gangs, or cartels; and 
The defendant does not have a significant criminal history. A significant criminal history will normally be evidenced by three or more criminal history points but may involve fewer or greater depending on the nature of any prior convictions . . . ".

Criminal defense attorneys now benefit in additional ways under the Holder Memorandum. Recidivist Enhancements: Prosecutors should decline to file an information pursuant to 21 U.S.C. § 851 unless the defendant is involved in conduct that makes the case appropriate for severe sanctions." (Emphasis added). In general, each of these pronouncements was greeted with a cautious, wait-and-see attitude. But District Judge Richard G. Kopf said it best. In a posting on his blog at Hercules and the Umpire, he wrote: "If the Holder Memo is interpreted strictly by line prosecutors, it is a very good thing. If, however, the Holder Memo is interpreted loosely by prosecutors and they stretch the boundaries of the government's new-found leniency policy to do deals that do not conform to the spirit of the policy, then the Holder Memo will be a very bad thing. It will result in even greater sentencing disparity in drug cases."

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